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Monday, October 23, 2006

Supreme Court ruling on Afzal case

I have already defined my position on Mohammed Afzal case.But here, I would like to look at few statements used in the judgment.

The Supreme Court says: “The incident, which resulted in heavy casualties, had shaken the entire nation and the collective conscience of the society will only be satisfied if capital punishment is awarded to the offender.” (emphasis mine)

We always believe that our Judiciary should uphold constitution and the legal system without getting biased or prejudiced by the opinions of the people or majorities.We believe our penal system is not to punish the offender but to rehabilitate him.

Do we give death sentence to satisfy the collective conscience of the society?Does the convict get a sentence based on the crime or based on what the collective conscience has felt about it?

The Supreme Court says: “As is the case with most of the conspiracies, there is and could be no direct evidence of the agreement amounting to criminal conspiracy.However, the circumstances, cumulatively weighed, would unerringly point to the collaboration of the accused Afzal with the slain ‘fidayeen’ terrorists”. (emphasis mine)

When did we start using circumstantial evidence, however cumulative it is, to be unerring? And when did we start using ‘no direct evidence’ to award a death sentence, which we agree should be awarded in ‘rarest of the cases’?

It is unrealistic to expect the judiciary, in the legal system of any country, to rule without consideration to public policy and conscience. Remember that in passing judgment the judiciary is under pressure to explain itself to the public, so as to be seen as delivering justice. If an accused is fouind guilty and the public overwhelmingly agree on a punishment, it would take an exceptionally bold judiciary to disagree with that. The judiciary does the play the role, albeit sparingly, as 'keeper's of the public's conscience'. Not always do they have the liberty to work stricly according to legal principles. They cannot do that without jeopardising their jobs.

Anonymous:I do not believe a 'collective conscience' should be the reason for awarding grave punishment to an offender. I think it sets a dangerous precedent. Its tantamount to taking an opinion poll or a referendum to award certain punishment to a criminal. I do not agree to equating law with popular opinion. If such a thing happens, one can rationalize many crimes committed to humanity. One can easily argue that that the 'collective conscience' of certain Rwandan tribes allowed for awarding capital punishment to other tribes. Or Nazis can rationalize their actions saying the 'collective German conscience' dictated that Jews should be stripped of their citizen rights. Law and popular opinion should be separated.

(A law can be made by legislature which is representative of the people. But there is a legal framework and procedure for that. Once the law is made, it cannot be subject to public opinion on a case-by-case method)

If they remove that term out ('collective conscience'), and say that it has been awarded because he is guilty of the crimes that he committed which warrant death sentence, I will have no questions.

As a citizen of India, I expect my Supreme Court to pronounce the judgement based on the evidences and arguments presented in the case, not what people and the opinion polls are saying.

The public opinion will be taken care by legislature, not judiciary. Matter of 'conscience' cannot be a reason for awarding death penalty. Who measures this conscience? Who decides this conscience?

Is 'trying to keep one's job' a good enough reason to give death sentence? If they are worried about their job, how come they give ruling againsts the government in so many instances- like in Delhi land cases, or in creamy layer of OBC, MP's expulsion case, Office of Profit, etc? These days the judiciary is at loggerheads with Indian legislature as seen by INDIA TODAY this week edition.

I thought it was politicans who resort to pleasing people. Is judiciary in cahoots with them too?

I don't think judiciary has a need to explain itself to the public. Its the legislature's job. The leigislature formulates laws and it is the duty of judiciary to uphold Indian constitution and the Indian law, even if it mean it has to go loggerheads with the government and popular opinion.

@mallapottell "I do not understand why you defend islam and the people who commit barbaric crimes against humanity in the name of islam." I dont think you have interpreted the purpose of this article correctly. The article speaks about whether the judiciary system was working based on laws or on popular opinion. And if you are referring to the earlier article; please take note; that defending justice is different from defending a particular sect / group of people. So while defending justice it doesnt matter whether the person is a muslim / hindu / christian. if the law of the land needs the person to be punished; then so be it (base it on requisite proof). If the person is innocent; let him free. So where is the question of defending a particular religion ? For all we know; Afzal could have been innocent or even otherwise !!So it is a question of justice and not support for any group / religion.

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